Microsoft unites the big guns to invalidate patents

David Gomez, 1st October 2010

The big three of the software and computer industries are uniting for a common cause. Microsoft Corp. has the support of Google Inc. and Apple Inc. in their attempt to get a patent-infringement verdict overturned.

Seeing a pair of Microsoft’s competitors supporting them is significant. You’re probably wondering like I am if the three of them all went out for beers to discuss the issue. Was it casual or formal?

Intel Corp., Toyota Motor Corp. and the Securities Industry and Financial Markets Association also filed papers to urge the U.S. Supreme Court to take Microsoft’s case. Microsoft is asking the court to consider making it easier to invalidate patents in a case it lost to I4i Inc.

The case involves I4i’s invention related to extensible markup language or XML, and customizing it. Microsoft had to issue an update to its Word software in order to follow a court order that demanded they stop using I4i’s XML invention.

I4i was also awarded $200 million dollars in damages which was later increased to $290 million to cover “continued infringement and enhanced damages.” If Microsoft is successful in getting the court to take their case they could get a new trial on the patent validity question.

I4i’s software is currently used by pharmaceutical giants such as Merck & Co. to make sure people have up-to-date and correct information on drug labels.

Microsoft, Google, and Apple have all had to deal with dozens of patent infringement lawsuits this year, often from small companies or independent inventors. Tired of being nickel and dimed the technology giants are going to begin fighting back.

Have the big guys finally seen the light and realized that the patent and copyright systems were created to protect innovation? Their abuses of the system have done much to stifle creativity in software.

The way the big tech companies have been using patents has led to them grabbing up a bunch of inventions that no software and computer development companies can legally use without having to deal with a patent infringement suit from a large tech corporation. The fear of a lawsuit has hurt innovation and the consumer.

Now Microsoft is experiencing firsthand how the system of protection is being abused and that everybody loses in that situation, even mighty Microsoft. Making it easier to invalidate certain “bad” patents will be a good thing for everyone who believes in the freedom to develop software to suit their needs.

The case with Microsoft is a slippery one. The patent I4i is claiming was actually included in software three years before the case Microsoft lost. This is known as prior art, which is a claim that is used to invalidate patents when something claimed to be patent worthy actually existed before the U.S. Patent and Trademark Office issued such a patent.

The Supreme Court rarely hears requests like the one Microsoft filed. If they do agree to take the case it is the best Interest of the consumer, the online community, and the free and open source software developers’ community if Microsoft prevails.

Who ever thought that what was good for Microsoft would actually be good for their competitors and the independent software developer?